Children of Divorce: Leave to Remove

Maeve O’Higgins
Family Law Partner at Burlingtons Legal

What is meant by leave to remove : how do such situations arise?

I am often asked to advise where one parent (nearly always the children’s mother) wants to move to another country with the children of the family, after the breakdown of her marriage/ relationship with the other parent.

She may wish to return to her country of origin, where she will have the practical and emotional support of her family and friends; she may have a new partner or spouse who comes from another country, or has a new job opportunity in another country and wants to join her new partner in that new country; or she may wish to move abroad to take up a better job opportunity for herself there.

There are also cases where a mother wishes to move to another country with which she has no close connection but which she feels will offer a better quality of life, or better life chances for herself and her children than where she is currently living.

It is generally felt by lawyers that it is more difficult to obtain permission to relocate abroad in the latter, “lifestyle”, type of cases.

When the other parent wishes to remain in the UK and does not agree to the children relocating abroad, the dispute between the parents can cause enormous distress and anguish to all involved – the two parents, their children and their wider circle of family members and close friends – all of whom will be affected by the outcome.

When the parents are unable to agree about whether or not the children should move to live permanently in another country, the court will have to determine what should happen. This is known as “leave to remove”.

 The Current Law and Guidance on Leave to Remove:

No parent may remove a child permanently from the UK without the written consent of the other parent (and/or any other person who has legal parental responsibility for the child) or the leave (permission) of the court.

This is so even if the other parent does not have parental responsibility (which all mothers have automatically and most fathers also have) for the child because interference with a parent’s “rights of custody”(which need not include daily care and control of the child) will amount to child abduction, which is likely to result in an order for the summary return of the child to the  UK under the Hague Convention on Child Abduction 1980 and will usually also be a criminal offence.

leave to remove

No parent may remove a child permanently from the UK without the written consent of the other parent.

Similarly, remaining in a foreign country with your children after the end of an agreed holiday will amount to a wrongful retention, which is also actionable under the Hague Convention 1980.

The important distinction between legal principle (which must be followed) and guidance (to help the Judge to decide the case but which is not binding on him/her) in leave to remove cases:

There is only one legal principle applicable in relocation cases: that the welfare of the individual child concerned is the court’s paramount consideration (“the Welfare Principle”).

The court must carry out a global holistic evaluation of the welfare of each child by reference to specific factors set out in the Children Act 1989 (known as ” the Welfare Checklist”), involving an analysis of all the welfare options, followed by evaluation of the positives and negatives of each option.

All the options put forward by the relocating parent (nearly always the children’s mother) must be weighed against the competing options of the other parent (nearly always the father). In particular there must always be an analysis of the potential benefits to each child of the relocation to the new country measured against the erosion in the quality of the children’s relationship with the parent who will be left behind in the event of the relocation.

The Welfare Checklist factors are as follows:

  • the child’s wishes and feelings (of increasing importance with the child’s increasing age and maturity);
  • the child’s physical, emotional and educational needs;
  • the likely effect on each child of any change in his circumstances;
  • the child’s age, sex, background and any relevant characteristics;
  • any harm the child has suffered or is at risk of suffering;
  • how capable each of the parents are in meeting each child’s needs; and
  • the range of powers available to the court in the proceedings.

Different weight will be attached to the different Checklist factors, depending on the particular circumstances of the case.

Judicial guidance from previous Court of Appeal decisions, including Payne v. Payne in 2001, is still relevant to help judges identify the most important factors to be taken into account in deciding the welfare question, the weight to be attached to them and to promote judicial consistency in decision-making, but not so as to dictate a particular outcome to the case.

Each case must be decided on its own particular facts and the judge hearing each case is entitled to decide the extent to which the Payne guidance assists him or her.

The court’s emphasis on the importance of “the emotional and psychological well-being of the primary carer” in Payne, as interpreted in subsequent cases up until 2011 meant that a primary carer (mother’s) application for leave to remove would usually succeed unless her relocation plans were ill thought out and/or or she was motivated by the desire to obstruct the children’s relationship with their father.

Now, no assumptions are to be made in favour of a parent seeking to relocate the children abroad and consequently the left behind parent is more likely to be successful in opposing the relocation than used to be the case.

The outcome of applications for leave to remove tend to be much more finely balanced and difficult to predict than before, which underlines the importance for parents obtaining expert specialised legal advice in relation to international relocation cases.

About Maeve

Maeve O’Higgins, Family Law Partner at Burlingtons, solicitors in London

For more information and advice in individual cases about international leave to remove, you can contact me by email:

maeve.ohiggins@burlingtonslegal.com

 (020) 7529 5420

 Please visit our website on international/relocation of children leave to remove www.leavetoremove.info

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